Florida Sentencing Guideline Departures: Legitimate, Uncoerced Plea Bargain

In previous posts we have looked at some of the lawful bases upon which the court can impose a sentence that is less than the person's low end guideline score. Florida currently recognizes fourteen guideline departure bases. This post explains the circumstances under which the court can depart based on a "legitimate uncoerced plea bargain". Before examining this departure basis in greater detail, a brief recap of how sentencing guidelines work in Florida is fitting.

First, every felony offense in Florida is assigned a specific offense level, which correlates to a certain number points (guidelines do not apply in misdemeanor cases). The most serious offense before the court for sentencing (where there is more than one), is scored as the primary offense. Less serious crimes (those with lesser offense levels) are scored as additional offenses. With a few narrow exceptions, the accused person's prior criminal history will also be scored. If the total points exceed 44, then the court must impose a prison sentence, unless there is a lawful departure basis (there is an exception here as well: if the defendant's offense is a non-violent felony, the total sentence points are 60 or fewer, and the court determines that the defendant is amenable to the services of a post adjudicatory treatment-based drug court program, the court may avert an otherwise mandatory prison sentence). Once the total points are determined, a small mathematical calculation is performed to arrive at the lowest permissible number of months the accused must serve. The maximum penalty is determined by statute, and can range from five years to life, depending on the crime with which the accused has been charged.

By law, the primary purpose of the criminal punishment code (Florida's sentencing guideline scheme) is to punish. Rehabilitation is a desired goal of the criminal justice system, but is subordinate to the goal of punishment. Because of this, the criminal defense attorney always has his or her work cut out when a client is scoring mandatory prison.

A legitimate uncoerced plea bargain is essentially an agreement with the prosecutor for a sentence that is less than the minimum guideline score. Of course, if the total sentence points are 44 or less, then no departure basis is necessary for the court to impose a non-state prison sanction. That doesn't mean however, that the state cannot seek a prison sentence and it does not mean that the court cannot impose one. It is only where the total points exceed 44, to reiterate, that a lawful basis is required and a legitimate uncoerced plea bargain is one that your criminal defense attorney should almost always consider.

You should know that a legitimate uncoerced plea bargain is not a plea bargain with the court. An agreement between the defendant and the court is not, in and of itself, a lawful basis for the court the impose a below guideline sentence. Should this happen, the state would likely appeal the sentence and the matter would be remanded for re-sentencing within the applicable guideline range or to allow the defendant to withdraw his or her plea.

The state will not, however, appeal a sentence it agrees to, and that is a real advantage here. Most other departure bases are in the discretion of the trial court and must be supported by competent, substantial evidence. Once again, if there is no agreement with the state for a below guideline sentence, the state is usually going to object to the departure and there is a good possibility that it will file an appeal. In seeking a below guideline sentence for a client, an agreement with the state is almost always my first approach for that reason.

To agree to a departure, the state must be convinced that it is the right thing to do. To that end, the criminal defense attorney must present any and all mitigating circumstances in a compelling manner. This may include a particular client's mental health history, addiction issues (and, of course, amenability to treatment), his or her lack of significant criminal history, that he or she played a minor role in the offense (if that is in fact the case), the client's genuine sense of remorse for his or her conduct, and/or willingness to pay restitution. The list of potential mitigating factors is almost limitless and will depend on the facts and circumstances of the individual client and the case. Most prosecutors are very reasonable and seek to do the right thing. If the prosecutor is persuaded that a non-state prison sanction is appropriate, where the guidelines otherwise require a prison sentence, he or she will usually agree to the departure. As a Pinellas County state prosecutor, I was always open to considerimg this type of information from a criminal defense lawyer on behalf of his or her client. If I felt a departure was justified, I would agree.

Because it is a plea bargain, there will almost always be conditions associated with the sentence that the accused person will have to adhere to, such as appropriate counseling, payment of restitution, abstinence from mind altering substances, and/or performance of community service hours. Here again, the conditions will depend the nature and circumstances of the client and the case. In more serious cases, the depature may still involve prison time but the agreement may be to a lesser amount of time that what the guidelines call for. In other instances, the agreement may entail a county jail sentence which cannot exceed one year. For a person who is facing five or six years at the low end of the guildelines, for example, a one year county jail sentence may be a very favorable outcome.

You should also be aware that the court does not have to accept the plea agreement between the state and the defense and can refuse to depart. This is, however, pretty rare. Most judges will acknowledge that the state knows its case better than the court does and if the state is agreeing to the departure, the court will usually acquiesce. The court also realizes that the departure sentence will not be appealed by the state which adds some incentive, I think, to ratify a reasonable agreement.

As a St. Petersburg criminal defense attorney, a good deal of my time is spent seeking to avert mandatory guideline sentences for my clients. It is not an easy task, but with some effort, persistence, and grit, it can usually be accomplished. As always, I hope this post was helpful

Categories: Criminal Defense, DUI